Tuesday, July 29, 2014

Storytelling and Atkins v. Virginia

Daryl Atkins
A picture may be worth a thousand words, but a powerful story can mean the difference between life and death. In 2002, the United States Supreme Court issued an opinion in Atkins v. Virginia, 536 U.S. 304 (2002). In a 6-3 split, the Court held that executing mentally retarded offenders (the Court’s words) violates the 8th Amendment prohibition against cruel and unusual punishment.  

The storytelling techniques employed by Justices Stevens (for the majority) and Scalia (for the dissent) are wonderful examples of the power of a story. Each justice intentionally provides certain levels of detail, employs varied sentence structure, and uses choice words to highlight and deemphasize facts.

Stevens’s version of the facts:

Petitioner, Daryl Renard Atkins, was convicted of abduction, armed robbery, and capital murder, and sentenced to death. At approximately midnight on August 16, 1996, Atkins and William Jones, armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the money on his person, drove him to an automated teller machine in his pickup truck where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed.

Stevens’s facts are intentionally sterile and devoid of details. Now read Scalia’s story:

A bank camera image of Jones,
Nesbitt, and Atkins
Courtesy of the Daily Press
(via the New York Times)
After spending the day drinking alcohol and smoking marijuana, petitioner Daryl Renard Atkins and a partner in crime drove to a convenience store, intending to rob a customer. Their victim was Eric Nesbitt, an airman from Langley Air Force Base, whom they abducted, drove to a nearby automated teller machine, and forced to withdraw $200. They then drove him to a deserted area, ignoring his pleas to leave him unharmed. According to the co-conspirator, whose testimony the jury evidently credited, Atkins ordered Nesbitt out of the vehicle and, after he had taken only a few steps, shot him one, two, three, four, five, six, seven, eight times in the thorax, chest, abdomen, arms, and legs. 

These two passages tell very different stories and evoke different emotions. Stevens, for example, crams his factual background into 2 sentences—the second of which is 61 words long. Details get lost in a long sentence, especially details at the beginning or middle of the sentence. Scalia, on the other hand, writes 4 shorter sentences that better emphasize and highlight the damning details of the crime.

Stevens provides no background about Nesbitt or Atkins, but we learn from Scalia that Nesbitt was a member of the military serving his country while Atkins had been drinking alcohol and smoking marijuana on the day the crime occurred. With Stevens’s version, the reader has no particular feelings about Atkins, while Scalia’s facts make the reader instantly dislike or distrust Atkins and feel sympathy for Nesbitt.

Stevens uses benign words, describing how Atkins robbed Nesbitt “of the money on his person” then “took” Nesbitt to the location where he was killed. Scalia, on the other hand, employs stronger language: he describes how Atkins ignored Nesbitt’s pleas, “forced” Nesbitt to withdraw money from an ATM, and “ordered” Nesbitt out of the vehicle before shooting him.

Even the language used to describe the shooting itself is carefully selected. The reader learns from Stevens that Nesbitt was shot eight times, a statement that evokes little emotion. But with Scalia, the reader feels each shot—one, two, three, four, five, six, seven, eight.

These stories come from an opinion, but the persuasive value in each is evident, and they serve as good examples of the power good storytelling. The factual background of many cases will not be as interesting—after all, parties litigate contract disputes all the time—but every factual statement can be put into a narrative that tells the story of why the client should prevail.

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